IMAGE  EVALUATION 
TEST  TARGET  (MT.3) 


1.0 


I.I 


1.25 


'i^  III    1112.5 


iM    III  2.2 


•:  m 

u.     let 


2.0 


1.8 


1-4    III  1.6 


V} 


^ 


^f 


^1 


'm 


0 


/ 


M 


Photographic 

Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  NY.  14580 

(716)  872-4503 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  imajes  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  iti  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  methode  normale  de  filmage 
sont  indiqu^s  ci-dessous. 


0    Coloured  covers/ 
Couverture  de  couleur 


□ 

□ 
□ 
n 

n 


D 


D 


Covers  damaged/ 
Couverture  endommagee 

Covers  restored  and/or  laminated/ 
Couverture  restaur^e  et/ou  pellicul6e 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  gdographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Reli6  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  reliure  serree  peut  causer  de  I'ombrb  ou  de  la 
distortion  le  long  de  la  marge  intdrieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajouties 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  dtait  possible,  ces  pages  n'ont 
pas  6t6  film^es. 

Additional  comments:/ 
Commentaires  suppl^mentaires; 


n 

D 

n 
n 
n 


Coloured  pages/ 
Pages  de  couleur 

Pages  damaged/ 
Pages  endommagies 

Pages  restored  and/or  laminated/ 
Pages  restaurdes  et/ou  pellicul^es 

Pages  discoloured,  stained  or  foxed/ 
Pages  d^colordes,  tachet^es  ou  piqu^es 

Pages  detached/ 
Pages  d6tach6es 

Showthrough/ 
Transparence 

Quality  of  print  varies/ 
Quality  indgale  de  {'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  supplementaire 

Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  6t6  filmies  d  nouveau  de  facon  i 
obtenir  la  meilleure  image  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 


10X 

icum 

B,u  e 

SI   Til 

me  a 
14X 

U   IBU 

X  ae 

reau 

ciion 
18X 

mail 

^ue  c 

i-aes 

SQUS 

22X 

26X 

30X 

/ 

12X 

16X 

20X 

24X 

28X 

32X 

I 


» 

itails 
>  du 
odifier 
'  une 
mage 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

National  Library  of  Cana<Ja 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


L'exemplaire  film6  fut  reproduit  grSce  A  la 
g6n6ro8it6  de: 

Bibliothdque  nationale  du  Canada 


Les  images  suivantes  ont  6x6  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  et 
de  la  nettet^  de  l'exemplaire  film6,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  >— »>  (meaning  "CON- 
TINUED "),  or  the  symbol  y  (meaning  "END"), 
whichever  applies. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimde  sont  film6s  en  commenpant 
par  le  premier  plat  et  en  terminant  soit  par  la 
dernidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  film^s  en  commenpant  par  la 
premidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
dernidre  image  de  chaque  microfiche,  selon  le 
cas:  le  symbole  — »-  signifie  "A  SUIVRE",  le 
symbole  V  signifie  "FIN". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
film6s  6  des  taux  de  reduction  diffdrents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clichd,  il  est  film6  d  partir 
de  Tangle  sup6rieur  gauche,  de  gauche  6  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  n6cessaire.  Les  diagrammes  suivants 
illustrent  la  mdthode. 


jrrata 
to 


pelure, 
in  ck 


n 

32X 


1 

2 

3 

1 

2 

3 

4 

5 

6 

;  ^  .'  '■^, 


.^...M        ■     i% 


Mm 


I 


,'..^1'!^^  «w^ 


p^- 


i  4& 


WIMOWISCS  IN  AMERICAN  HISTORY. 

FISHERIES  SERIES. 


-jS^ 


No.  I. 


4' 


:«i, 


WINNOWIJiGS  IN  AMERICAN  HISTORY. 


FISHERIES  SERIES. 
No.  I. 


250  copies  printed. 
No. 


Si^-  ; '   /  y-. 


•^ 


i 


A  Letter  to  Albert  Gallatin, 
on  the  French  Claims  to 
the  Newfoundland  Fish- 
eries, written  Oct.  i,  1822. 


BY 


RICHARD  RUSH. 


i 


BROOKLYN,  N.  Y. : 

Historical  Printing  Club. 

1890. 


NOTE. 


The  following  letter,  printed  from 
the  original  manuscript  in  the  posses- 
sion of  Mr.  Gordon  L.  Ford,  relates  to 
the  claim  of  France  to  the  west  coast 
Newfoundland  fisheries,  the  discussion 
of  which  has  been  so  recently  revived. 
Though  the  matter  has  ceased  to  be 
a  question  in  which  the  United  States 
is  directly  interested,  it  nevertheless 
has  a  bearing  on  our  own  claims,  and 
is  a  necessary  part  of  the  whole  sub- 
ject of  American  Fisheries. 

Paul  Leicester  Ford. 
gy  Clark  St.,  Brooklyn,  N.  K 

(5) 


I 


London,  October  io,  1822. 
His    Excellency    Albert     Gallatin, 
Envoy  Extraordinary  and  Minister 
Ple?iipotentiary    from     the     United 
States — Paris, 

Dear  Sir  : 

I  received  your  letter  of  the  ninth 
of  last  month,  and  if  I  'lave  delayed 
answering  it  until  aov/,  it  has  only 
been  that  I  might  improve  the  interval 
in  endeavoring  to  obtain  sucli  further 
matter  upon  the  subject  of  it,  as  might 
give  to  my  letter  the  chance  of  being 
acceptable  to  you. 

A  short  time  after  our  convention 
with  this  court  of  18 1 8,  the  general 
assembly  of  Nova  Scotia  took  the 
subject  of  it  up,  making  it  the  founda- 
tion of  a  memorial  to  the  Prince  Re- 
gent.    In  the  course  of  this  memorial, 

(7) 


•f 


/* 


8 

heavy  complaints  were  urged  against 
the  ministry  for  arranging  the  question 
of  the  fisheries  with  us,  as  by  the  first 
article  of  the  convention.     A  consider- 
able body  of  evidence  upon  this  and 
other  points,  was  laid  before  the  as- 
sembly and    the   whole  proceedings 
published  in  a  volume  in  1819.     For 
this  volume  I  have  made  every  inquiry 
among  booksellers  and  other  persons 
in  London,  as  it  would  probably  throw 
light  upon  our  discussion,  but  hitherto 
without  success.     Doubtless  it  must 
be  in  the  foreign  or  colonial  office,  but 
I  have  not  as  yet  tried  these  sources. 
A  portion  of  its  contents  appeared  in 
the  London  Times  of  September  the 
4th  1 8 19,  but  nothing  that  materially 
subserves  our  purpose.     I  have  also 
examined    the  parliamentary  debates 
of  March  and  April   1786,  to  which 
Anspach  refers,  but  find   nothing    in 
them  that  touches  the  question  of  con- 


> 


':>> 


flicting  claims   as   between    England 
and  France,  to  any  part  of  the  coast 
of  Newfoundland.     Nor  do  I  find  in 
Reeves's  history  of  the  government  of 
Newfoundland,  a  copy  of  which  I  pro- 
cured  through  the  author,  there  being 
none  on  sale,  any  thing  upon  the  sub- 
ject, or  any  notice  of  the  proclamation 
mentioned  in  my  letter  of  the  thirtieth 
of  August. 

The  more  I  reflect  upon  the  whoh^ 
subject,  the  more  I  become  satisfied 
that  France  cannot  support  a  claim  to 
an  exclusive  fishery  upon  any  part  of 
that  coast.     Historically,  this  Island 
must  be  looked  upon  as  English  from 
the    very     beginning,    for     although 
claims  are  put  in  to  its  earlier  discov- 
ery by  the  French,  the  Biscay ners,  and 
perhaps  by  other  nations,  the  best  ac- 
counts ascribe  its  discovery  to  Cabot, 
in    Henry   the   seventh's   time.     The 
first  colonial  establishments  there,  of 


i 


i  m 


lO 


any  such  deserving  the  name,  were  by 
the  English,  and  these  they  continued 
to  follow  up  with  more  effect  than  any 
rival  nation.  If  any  other  nation  can 
ever  make  out  a  prior  right  to  fish  off 
the  Island,  the  earliest  and  best  claim 
to  sovereignty  over  it  belongs  to  Eng- 
land, who  left  its  harbours  and  fishing 
places  open  and  free  to  other  nations, 
but  always  without  prejudice  to  her 
own  sovereignty.  Whatever  concur- 
rent claims  other  nations  may  have  set 
up  to  it,  or  whatever  concurrent  rights 
England  may  have  yielded  in  their 
favor,  she  has  never  at  any  time,  by 
her  own  act,  parted  with  a  tittle  of  this 
sovereignty.  She  has  never  made  a 
grant,  that  I  can  discover,  of  any  part 
of  the  Island,  bearing  to  be  exclusive, 
whether  for  fishing  or  other  purposes. 
We  find  on  the  contrary  constant 
complaints  from  her  of  the  encroach- 
ments of  the  French  in  that  quarter, 


II 


whose  settlements  at  Placentia  do  not 
however  appear  to  have  been  made 
earher   than    1662.     These  encroach- 
ments the  Enghsh  colonists  of  New 
England,  particularly  those  of  a  later 
day,  did  their  full  share  to  beat  back, 
though  Anspach  has  no  notice  of  their 
efforts.     We  have  Burnet's  authority 
for   saying,   that    France   was   called 
upon  to  pay,  and  did  actually  pay 
tribute    for  the  privilege   of   fishing 
there,  in  the  time  of  Charles  the  sec- 
ond. 

I  have  said  that  it  does  not  appear 
that  England  has  ever  yielded  up  any 
exclusive  rights  to  any  part  of  the  Is- 
land.    Perhaps  to  this  assertion  there 
IS  an  exception,  and,  as  far  as  I  have 
yet   examined    the   treaties    between 
England  and  France,  but  a  single  one 
The  exception  will  be  found  in  the 
"treaty  of  peace,  good  correspondence 
and  neutrality  in  America,"  between 


f 


12         . 

the  two  nations,  of  November  i6, 
1686.  By  the  5th  article  of  this  treaty 
it  is  provided,  "  that  both  kings  shall 
enjoy  all  the  rights  &c  they  are  now 
possessed  of  in  America,"  France  in 
point  of  fact  holding  settlements  and 
possessions  in  Newfoundland  at  that 
time.  By  the  6th  article  it  is  stipulated 
"  that  the  subjects  of  neither  shall  trade, 
fish  &c  within  the  precincts  of  the  other, 
and  if  any  ship  be  found  so  doing,  it 
shall  be  confiscated."  Now,  I  deduce 
from  this  treaty  an  argument  of  some 
weight  in  favor  of  our  position.  It  is 
seen  that  when  England  intended  to 
pass,  and  France  to  be  put  in  posses- 
sion of,  an  exclusive  right,  proper 
words  are  employed  to  that  effect. 
The  Island,  by  the  operation  of  the 
clauses  cited,  was  placed  in  a  certain 
state  of  division  between  the  two 
countries,  the  right  of  each  being 
made  exclusive.     Where  shall  we  find 


mmmmm 


13 

any  words  of  equivalent  import  and 
strength  in  the  treaty  or  declaration  of 
1783  ?     It  may  be  proper  to  remark, 
that  although  this  treaty  of  1686  was 
binding  upon   England,   it  was  com- 
plained  of  by  English  subjects  as  de- 
rogatory to  the  statute  of  15.  Charles 
2"^-  ch.    16,  as   that   statute  has  pre- 
scribed several  regulations  relating  to 
the  mode  of  carrying  on  the  fishery, 
to  be  observed  m  any  of  the  harbours 
of  Neivfoundland.     We   may    gather 
hence  how  jealous  was  the  English 
feeling  as  to  all  positive  grants  of  ex- 
elusive  rights  to  any  other  nation,  and 
how   necessary  express   words   must 
have   been   accounted    to   pass   such 
rights. 

Waving  all  further  references  to  the 
early  history  of  the  Island,  which  how- 
ever cannot  be  without  their  use  in 
seeking  light  upon  a  point  that  may 
be  thought  of  doubtful  construction,  it 


14 


is  sufficient  that,  by  the  treaty  of 
Utrecht,  the  absolute  sovereignty  of  it 
passed  to  England.  The  war  that 
preceded,  had  thrown  nearly  the  whole 
of  it  into  the  hands  of  France,  but  the 
peace  reinstated  as  well  the  possession 
as  the  sovereignty  of  England ;  and  it 
is  obvious  that  France  herself  is 
obliged  to  rest  the  whole  of  her  claims 
upon  the  stipulations  contained  in  her 
favor  in  the  1 3th  article  of  this  treaty. 
With  whatever  perseverance  these 
claims  have  been  urged  by  France  as 
giving  her  exclusive  rights,  they  have 
been  as  constantly  resisted  by  Eng- 
land, who  has  treated  them  only  as 
concurrent.  You  will  have  seen  what 
Anspach  says  about  the  disputes  be- 
tween the  two  countries  as  to  the  real 
situation  of  Pointe  Riche  (a  passage 
that  perhaps  leaves  the  more  impres- 
sion upon  us  from  the  share  that  Prior 
the  poet  had  in  the  negociations,)  and 


^^ 


15 

also  that  in  setting  out  the  Engh'sh 
declaration  of  war  against  France  in 
the   time  of  Wilham    III,  he  shows 
that  the  encroachments  of  the  French 
upon   the   rights   of  the   English    in 
Newfoundland  are  described  as  having 
been  "more  like  the  invasions  of  an 
enemy,   than   becoming   friends   who 
enjoyed  the  advantages  of  that  trade 
on\y  by  p€rmissio7tr     I  am  the  more 
particular  in  recalling  these  words  as 
I  think  that  they  gw^  us  the  true  ex- 
planation  of   the   real   groimd   upon 
which  the   French   fishing   rights   at 
Newfoundland  rest  at  the  present  day. 
I  have  obtained  access  to  some  par- 
liamentary papers  which  contain  mat- 
ter  highly  pertinent  to  our  discussion. 
As  I   cannot   procure  them  for  your 
use  (they  have  only  been  borrowed 
for  my  own,  through  the  attention  of 
Colonel   Aspinwall)    I    will    proceed 
to  apprize  you  of  such  portion  of  their 


I  'I 


i6 


contents,  as  is  most  material.  They 
consist  of,  i^.*  a  "  copy  of  a  representa- 
tion of  the  lords  commissioners  for 
trade  and  plantations,  to  his  majesty, 
relating  to  the  Newfoundland  trade 
and  fishery,"  dated  December  the  19th 
17 18.  2.  A  paper  with  the  same 
title,  dated  April  the  29th  1765.  And 
3'"'^,  a  paper  entitled  '*  Report  of  the 
Lords  of  the  committee  of  privy  coun- 
cil for  trade,  on  the  subject  of  the 
Newfoundland  fishery,"  dated  the  17th 
of  March  1786,  These  were  all  docu- 
ments printed  by  order  of  parliament 
in  1793.  The  two  first  are  filled  with 
details  of  the  manner  of  carrying  on 
the  fishery  from  the  earliest  times  to 
the  period  of  their  dates,  embracing  a 
reference  to  all  the  regulations  by 
statute  or  otherwise  upon  the  subject, 
and  containing  notices  also  of  the  dis- 
putes between  France  and  England 
that  so  often  existed  in  relation  to  it. 


\ 


I 
0 


17 

These   details   are   chiefly   historical 
and   are   no  further  necessary  to  be 
adverted  to  than  as  they  go  to  show 
that   England    has   never   renounced 
any  of  her  rights  to  this  fishery  in  any 
one  instance.     The  most  that  she  has 
done  has  been  to  allow  France  a  co- 
equal  enjoyment  in  them,  sometimes 
indefinitely,  sometimes    in   parts   and 
places  that  have  been  specified;  some- 
times  exacting  tribute  for  the  enjoy- 
ment,  and  sometimes  foregoing  it. 

The  third  is  the  document  of  chief 
importance,  because  it  has  direct  refer- 
ence throughout  to  the  treaty  of  1783 
and  seems  to  have  been  produced  by 
that  treaty.     We  will  follow  its  prin- 
cipal  passages. 

'*It  is  agreed"  says  this  Report 
"by  all  your  majesty's  officers,  that 
the  part  of  Newfoundland  allotted  by 
the  late  treaty  of  peace  (1783)  to  the 
French  for  carrying  on  their  fishery,  is 


i8 


not  so  well  adapted  for  that  purpose  as 
that  where  we  fish  exclusively ;  and 
although  the  cod  is  as  large  on  that 
part  of  the  Island  where  the  French 
are  allowed  to  fish,  the  climate  is  more 
unfavorable  for  drying  it."  And  again, 
"As  the  French  are  not  allowed  to 
winter  there,  they  arrive  too  late  to 
prepare  their  stages,  flakes  &c  and  to 
get  the  stuff  out  of  the  woods  for  the 
purpose  of  covering  them,  so  that  they 
are  obliged  to  cover  them  with  ships 
sails,  which  is  more  expensive,  and  does 
not  answer  so  well."  The  Report, 
after  dwelling  on  the  superiority  of  the 
English  mode  of  carrying  on  the  fish- 
ery over  the  French,  goes  on  to  say, 
that  the  committee  are  therefore  of 
opinion  that  it  would  be  "  highly  ex- 
pedient to  prevent  all  intercourse  what- 
soever between  your  majesty's  subjects, 
whether  resident  or  fishing,  at  New- 
foundland, and  those  of  any  foreign 


1  ^  V 


ri 


r 
1 

f 


I 


* 


19 

nation   whatsoever,  not   only  for  the 
purpose   now   suggested   (a    purpose 
growing  out  of  the  alleged  superiority 
of  the  English  fishermen)  but  for  that 
of  preventing  all  illicit  commerce  with 
foreign  nations."     The  Report  recom- 
mends that  no  French  subjects  be  al- 
lowed to  remain  in  the  Island  after  the 
fishing   season   is    over,  and   that  no 
British  subject  be  allowed  to  prepare 
any  boat,  stage,   or  flake   for    them 
against  the  ensuing  season,  and  it  con- 
cludes  in   the   following   manner  es- 
pecially worthy  of  our  attention.  "  The 
merchants  who  attended  the  commit- 
tee frequently  expressed  a  desire  of 
knowing  whether  British  subjects  had 
a  right  to  fish,  and  to  dry  fish,  within 
the  limits  where  the  French  are  by  the 
late  treaty  allowed  to  carry  on  their 
fishery;   and  at  the  same  time  com- 
plained that  several  of  your  majestys 
subjects   had    been    ordered    by  the 


20 

commanders  of  French  men  of  war  to 
remove  from  within  these  limits.  The 
committee  did  not  think  themselves 
sufficiently  informed  or  authorized  to 
answer  this  question.  The  doubt 
arises  from  the  manner  in  which  the 
duke  of  Manchesters  declaration  of 
September  3.  1783  is  worded,  and  can 
only  be  satisfactorily  cleared  up  by 
reference  to  the  correspondence  which 
passed  on  that  occasion.  But  the 
committee  are  decidedly  of  opinion 
that  by  the  words  of  the  treaty  your 
majesty  continues  to  be  the  sole  sov- 
ereign of  the  Island  of  Newfoundland. 
And  if  it  shall  be  the  opinion  of  your 
majestys  ministers  that  British  sub- 
jects ought  no  longer  to  fish  in  con- 
currence with  the  French  within  the 
limits  above  mentioned,  they  should 
be  obliged  to  remove  by  the  orders  of 
your  majestys  governors,  or  the  com- 
manders  of  your   majestys   ships   of 


\\ 


••HP" 


21 

war  authorised  by  your  majestys  in- 
structions for  that  purpose,  and  not  by 
those  of  the  French  officers  who  may 
happen  to  be  on  that  coast,  and  who 
in  cases  of  contravention  should  not 
be  allowed  to  exercise  any  authority 
upon  your  majesty's  Island  of  New- 
foundland, but  should  make  complaint 
and  apply  to  your  majestys  said  gov- 
ernor, or  the  officers  who  act  under 
him,  for  redress." 

I  think  that  the  whole  tenor  of  these 
extracts  leads  to  the  conclusion  for 
which  we  contend.  They  show  that 
however  England  may  have  been  in- 
clined, for  her  own  purposes  or  as 
matter  of  *  *  *  accommodation  to 
France,  to  withdraw  her  subjects  from 
the  western  coast,  she  has  never  lost 
her  right  to  resort  there,  in  any  man- 
ner that  can  bar  us.  The  Committee 
are  decidedly  of  opinion,  that  by  the 
words  of  the  treaty ,  your  majesty  con- 


22 


iinues  to  be  the  sole  sovereign  of  the  Is- 
land of  Newfoundland.  This  is  our 
argument.  It  is  that  upon  which  for- 
eign nations  will  stand,  and  we  in  par- 
ticular, under  our  convention  with 
England  of  1818.  If  it  shall  be 
thought,  continues  the  Report,  that 
"British  subjects  ought  no  longer  to 
fish  in  concurrence  with  the  French 
within  the  limits  above  mentioned, 
they  should  be  obliged  to  remove  by 
orders  of  your  majestys  governors,  or 
the  commanders  of  your  majestys 
ships  of  war,  authorised  for  that 
purpose."  The  phraseology  of  this 
passage  shows  the  contemporaneous 
understanding  of  the  treaty  and  de- 
claration to  have  been,  not  that  Eng- 
land was  bound  as  matter  of  positive 
obligation  to  interdict  her  subjects 
from  the  western  coast,  but  only  that, 
from  sufficient  motives,  she  might 
perhaps  intend  to  exercise  the  option 


fg  • 


23 

of  doing  so.  The  expression  "  ou^kt 
no  longer  to  fish"  is  proper  to  be 
remarked,  not  as  a  verbal  criticism, 
but  as  pointing  to  a  real  distinction 
between  a  stipulation  of  primary  and 
indispensable  obligation,  and  a  dispo- 
sition to  adopt  the  measure  resting 
upon  the  voluntary  determinations  of 
the  British  crown.  We  are  furnished 
too  in  this  part  of  the  Report  with  an- 
other exception  to  the  proceedings  of 
France;  viz.,  her  assumption  of  the  at- 
tributes and  character  of  Sovereign  of 
the  Island  in  ordering  away  our  ves- 
sels. Whatever  rights  she  has,  are 
manifestly  under  the  tenure  of  Eng- 
land, to  whom  therefore  her  com- 
plaints for  redress,  if  they  could  be 
supported,  would  have  been  more  reg- 
ularly addressed. 

There  seem  to  be  good  reasons  why 
England  might  have  felt  inclined,  as  a 
measure  of  expediency  on  her  own 


24 

side,  to  keep  her  subjects  away  from 
the  western  coast,  and  let  the  French 
fish  there  by  themselves,  though  cau- 
tious not  to  give  up  her  right.  For, 
first,  this  report  confirms  the  opinion 
and  testimony  of  the  officers  desig- 
nated by  Admiral  Keppel  to  give  an 
opinion  on  the  true  nature  of  the  fish- 
ing ground  on  the  western  coast.  It 
affirms  it  to  be  inferior  to  the  places 
where  the  English  fished,  if  not  as  to 
the  quality  of  the  fish  taken,  at  least  in 
the  article  of  drying.  Hence  it  is  no 
forced  construction  to  suppose,  that 
England  might  of  her  own  accord 
have  felt  willing  to  forego  for  a  time 
her  concurrent  right  of  fishing  on  a 
part  of  the  coast  which  she  believed, 
whatever  may  have  been  the  real  fact, 
to  be  less  advantageous  than  other 
parts  which  she  possessed  exclusively 
all  round  the  Island.  2ndly  The 
whole  history  of  this  fishery  shows  a 


SB9S 


25 

jealousy  on  the  side  of  the  English  of 
all  interference  with  their  fishermen 
on  the  part  of  the  French.  France 
would  probably  ascribe  this  jealousy 
to  the  superior  success  with  which 
she  managed  her  fishing  concerns. 
England  on  the  other  hand  believing 
in  the  superior  skill  of  her  own  fisher- 
men, and  the  superior  quality  of  their 
equipments,  seems  to  have  been  de- 
sirous to  confine  the  effects  of  each  to 
herself,  a  result  which  keeping  the 
fishermen  of  the  two  nations  apart 
would  have  been  the  most  natural 
means  of  accomplishing.  She  not 
only  had  alleged  that  her  fishing  boats 
were  larger  and  all  her  fishing  utensils 
better  than  those  of  the  French,  but 
also  that  the  French  had  been  in  the 
habit  of  encouraging  the  desertion  of 
the  British  fishermen  to  get  the  benefit 
of  their  dexterity.  It  was  doubtless 
under  these  inducements  of  real   or 


26 

presumed  superiority  in  the  British 
fishermen,  that  we  find  the  Report 
recommending  not  only  that  no 
Frenchman  be  allowed  to  remain  in 
the  Island  after  the  fishing  season, 
(the  declaration  as  we  know  forbids 
their  wintering  there,)  but  that  "  no 
British  subject  be  allowed  to  prepare 
any  boat,  stage,  or  flake"  for  them 
against  the  next  season;  and  further 
recommending  even  that  all  inter- 
course should  be  prohibited  between 
British  subjects  either  "  resident  or 
fishing''  and  those  of  any  foreign 
nation  at  Newfoundland.  A  further 
and  perhaps  still  stronger  motive  for 
this  prohibition  of  all  intercourse, 
aimed  chiefly  if  not  exclusively  at 
France,  was,  that  all  opportunities  of 
illicit  trade  and  smuggling  might  be 
cut  off.  When  the  boats  and  subjects 
of  the  two  nations  intermixed,  the 
French   were   known   to   supply  the 


27 

English  with  many  articles  which  they 
wanted  or  which  at  any  rate  were  ac- 
ceptable to  them,  particularly  brandies, 
whereas  it  had  ever  been  the  policy 
of  England,  which  she  aimed  at  ad- 
hering to  most  rigorously  in  practice, 
that  her  fishermen  should  receive  the 
whole  of  their  supplies  from  England. 
Such  views  of  the  subject  are  I  think 
sufficient  to  authorise  the  conjecture, 
that  England  may  have  contemplated 
a  spontaneous  inhibition  to  her  sub- 
jects of  the  Western  coast,  without  in- 
tending that  the  consequent  exclusive 
enjoyment  of  it  by  French  fishermen 
should  be  any  thing  more  than  a 
temporary  usufructuary,  and  by  no 
means  a  right.  It  is  possible  that  in- 
timations to  this  effect  may  have  had 
place  during  the  negociations  of  the 
treaty,  since  it  is  not  otherwise  easy 
to  account  in  all  respects  for  the  nature 
of  the  debates  upon  it  which  we  have 


1 


28 


seen.  These  considerations  strengthen 
me  also  in  the  inference,  that  the  decla- 
ration was  superadded  to  the  treaty  in 
order  to  afford  every  possible  latitude 
of  accommodation  to  France  in  the 
matter  of  fishing  on  that  coast,  con- 
sistently with  avoiding  a  surrender  of 
the  British  right. 

I  have  stated  that  there  is  no  notice 
in  Reeves  of  the  proclamation  said  to 
have  been  issued  by  the  governor  of 
Newfoundland,  to  exclude  British  fish- 
ermen from  the  Western  coast;  nor  do 
I  find  in  the  body  of  his  history  any 
thing  necessary  to  remark  upon.  But 
in  an  appendix  to  it,  the  acts  of  parlia- 
ment relative  to  this  fishery  are  col- 
lected, and  among  them  is  one  which, 
if  it  has  not  before  met  your  attention, 
and  it  had  not  mine,  you  will  find  very 
material.  It  is  the  act  of  28.  Geo.  III., 
ch.  35,  entitled  "an  act  to  enable  his 
majesty  to  make  such  regulations  as 


29 

may  be  necessary  to  prevent  the  in- 
convenience which  might  arise  from 
the  competition  of  his  majesty's  sub- 
jects and  those  of  the  most  christian 
king  in  carrying  on  the  fishery  on  the 
coasts  of  the  Island  of  Newfoundland." 
It  is  founded    expressly  upon   those 
parts  of  the  treaty  of  1783,  and  of  the 
declaration,  which  relate  to  this  fish- 
ery.    The  act  begins  by  a  full  recital 
of  the    13th  article  of  the  treaty  of 
Utrecht,  still  considering  this  as  the 
true   root   and   limit   of  the   French 
right.     It  next  recites  the  5th  article 
of  the  treaty  of  Paris  of  1763,  as  con- 
firming the  13th  article  of  the  treaty 
of  Utrecht;   then   we   have   the    5th 
article  of  the  treaty  of  1783  also  set 
forth,  as  well  as  all  those  parts  of  the 
declaration  which  relate  to  the  fishery. 
After  this  preamble,  and  stating  also 
that  "  it  is  expedient  in  conformity  to 
the  definitive  treaty  of  peace  and  the 


'>f 


30 

declaration  aforesaid  that  his  majestys 
subjects  should  be  prevented  from  in- 
terrupting in  any  manner,  by  their 
competition,  the  aforesaid  fishery  of 
the  subjects  of  his  most  christian 
majesty,  during  the  temporary  exercise 
thereof  which  is  granted  to  them  on 
the  coast  of  Newfdland,  and  that  all 
permanent  establishments  on  that  part 
of  the  coast  allotted  to  the  French 
fishermen  should  be  removed,  and  that 
such  fishermen  should  be  in  no  man- 
ner molested,  contrary  to  the  tenor  of 
the  said  treaty  and  the  good  faith 
thereof,"  the  act  proceeds  thus:  "In 
order  therefore  that  his  majesty  may 
be  the  better  enabled  to  carry  the  said 
several  treaties  and  declarations  into 
faithful  and  punctual  execution,  (there- 
by evidently  considering  tke  whole  as 
one  series  and  not  that  the  declaration 
had  created  any  new  or  substantive 
rights,)  and  to  make  such  regulations 


31 


as  may  be  expedient  respecting   the 
fishery,  be  it  enacted,  that  it  shall  and 
may   be  lawful   for   his    majesty,    his 
heirs    and    successors,   by   advice    of 
council,  from  time  to  time,  to   crive 
such  orders  and    instructions  to  the 
governors  of  Newfoundland,  or  to  any 
officer  or  officers  on  that  station,  as  he 
or  they  shall  deem  proper  and  necessary 
to  fulfil  the  purposes  of  the  definitive 
treaty  and  declaration  aforesaid;  and, 
if  it  shall  be  necessary  to  that  end,  to 
give  orders  to  the  governor,  or  other 
officer  or  officers  aforesaid,  to  remove 
any  stages,  flakes,  trainvats,  or  other 
works  for  the  purpose  of  carrying  on 
fishery,  erected  by  his  majesty's  sub- 
jects   on   that  part   of   the    coast   of 
Newfoundland    which    lies     between 
cape  St.  John,  passing  to  the  north, 
and     descending     by      the     western 
coast  of  the  said  Island  to  the  place 
called  cape  Raye ;  and  also  ships  ves- 


32 

sels  and  boats  belonging  to  his  ma- 
jestys  subjects  which  shall  be  found 
within  the  limits  aforesaid,  and  also  in 
case  of  refusal  to  depart  from  within 
the  limits  aforesaid,  to  compel  any  of 
his  majesty's  subjects  to  depart  from 
thence,  any  law,  usage  or  custom  to 
the  contrary  notv/ithstanding."  Here 
closes  the  section. 

"  A^id  if  it  shall  be  necessary  to 
that  end  British  subjects  and  their 
ships  vessels  and  boats,  are  to  be  re- 
moved from  these  limits.  That  is,  if 
the  governor  or  other  officer  or  offi- 
cers at  Newfoundland,  should  deem 
such  a  measure  necessary  and  proper 
for  fulfilling  the  purposes  of  the  defini- 
tive treaty  and  declaration,  not  other- 
wise. It  is  thus  that  I  understand  the 
act.  No  peremptory  duty  is  enjoined, 
but,  on  the  contrary,  words  could  not 
be  more  appropriate  to  imply  a  discre- 
tion.    Had  the  treaty  or  declaration 


If 


\%.' 


33 

been  considered  as  vesting  an  absolute 
right  in  France  to  an  exclusive  fishery 
within  these  limits,  the  words  of  the 
act  of  parliament  must  have  been 
equally  absolute,  or  the  English  na- 
tion would  have  failed  in  acting  up  to 
the  good  faith  pledged  in  the  declara- 
tion. It  is  highly  necessary  to  be 
kept  in  mind,  that  no  such  measure  of 
exclusion  as  against  British  subjects 
or  their  ships  or  vessels,  appears  ever, 
in  point  of  fact,  to  have  been  taken  by 
the  governor  at  Newfoundland,  or  by 
any  authority  whatever  emanating 
from  Britain.  I  have  not  been  able 
at  least  to  find  any  trace  of  such  a 
measure.  If  any  such  were  taken,  it 
could  not  extinguish  the  English 
right,  but  would  at  most  amount  to  a 
temporary  suspension  of  its  enjoyment, 
and  if  never  taken,  it  fortifies  the  con- 
struction that  would  declare  the  act  to 
be  in  the  alternative,  leaving  it  with 


34 


il         i 


the  discretion  of  Britain  to  order  her 
ships  and  subjects  away  or  not,  accord- 
ing to  circumstances.  The  great  ob- 
ject was,  that  the  English  fishermen 
should  be  restrained  from  molesting 
in  any  manner  the  French  fishermen, 
or  internipting  them  by  their  competi- 
tion. The  right  of  competition  is  not 
taken  away,  and  if  it  were  found  that 
its  exercise  could  be  regulated  so  as 
not  to  interrupt  the  French,  otherwise 
than  by  the  English  vessels  being 
actually  ordered  away  from  the  coast, 
then  England  was  not  called  upon  to 
order  them  away.  The  omission  of  all 
notice  of  any  proclamation,  or  other  act, 
to  this  effect  in  Reeves,  whose  book  was 
written  in  1793,  as  well  as  in  Anspach, 
whose  work  is  of  a  date  so  much  more 
recent,  goes  far,  as  negative  proof,  to 
show  that  none  such  was  issued ;  and 
it  is  evident  from  the  Report  of  the 
lords  of  the  committee  of  privy  coun- 


35 

cil  for  trade,  that  up  to  the  date  of  that 
instrument,  (March    1786)  there  had 
been  no  prohibition  of  British  subjects, 
except  on  the  part  of  France  herself. 
Of  this,  as  has  been  seen,  the  commit- 
tee complain,  as  of  a  step  irregular,  if 
not  offensive.  Hence,  whilst  my  course 
of  reasoning  goes  upon  the  supposition 
that  Great  Britain  might  have  felt  no 
abstract  repugnance  to  the  keeping  of 
her    subjects  and  vessels  away  from 
these  limits,  the  case  is  still  stronger 
for  her  if  she  did  not  m  point  of  fact 
find   it  necessary  for  any  purpose   of 
justice  towards  France  to  keep  them 
away,  and   whether  she   did    or  not, 
cannot  affect  the  United  States,  there 
being  nothing   upon  the  face  of  the 
treaty  or  declaration  by  which  she  was 
bound  to  keep  them  away;  in  other 
words  nothing  that  extinguishes  her 
concurrent  right. 

For  conclusion,  at  present,   I  will 


36 

call  your  attention  to  the  title  of  this 
act  of  parliament,  as  a  confirmation  of 
our  reasoning.  It  is  not  to  prevent  a 
competition,  but  to  prevent  the  incon- 
venience that  might  arise  from  a  com- 
petition. It  thus  presupposes  that  a 
competition  was  to  exist.  It  follows, 
that  the  scene  of  it  could  be  nowhere 
else  than  within  the  limits  in  question, 
since  to  every  other  part  of  the  coast 
the  English  right  was  beyond  all  doubt 
exchisive.  The  object  of  the  act  there- 
fore must  have  been,  so  to  regulate 
this  competition  as  to  fulfil,  in  a  reas- 
onable and  adequate  manner,  the  en- 
gagements of  the  declaration,  and 
leave  to  France  no  just  cause  of  com- 
plaint. 

October  the  29th.  I  had  written  the 
foregoing  sheets  and  was  waiting  a 
little  leisure  to  copy  and  send  them  to 
you,  when  I  received  a  note  from  Mr. 
Robinson,  requesting  me  to  call  at  the 


I 
I 


37      - 

office  of  the  Board  of  Trade.  I  ac- 
cordingly had  an  interview  with  him 
there  on  the  25th  of  this  month.  It 
was  upon  the  subject  of  the  West 
India  intercourse  that  he  wanted  to 
see  me,  but  I  availed  myself  of  the 
interview  to  broach  to  him  this  of  the 
fisheries.  The  suggestions  of  your 
letter  of  the  9th  of  September  had 
placed  the  expediency  of  an  applica- 
tion from  me  to  him  upon  a  ground  so 
unexceptionable,  that  I  determined  to 
act  upon  them  whenever  an  oppor- 
tunity threw  itself  in  my  way.  I 
asked  him,  when  our  other  business 
was  done,  whether  he  had  heard  any 
thing  of  France  being  about  to  drive 
us  av/ay  from  the  western  coast  of 
New^^Dundland,  where  he  would  recol- 
lect WQ  had  the  right  to  fish  under  his 
convention  of  1 8 1 8  ?  Ho  received  the 
communication  as  if  *-  -  to  him.  I 
told  him  that  although  I  had  no  inti- 


T 


38 

mation  from  my  government  on  the 
subject,  I  had  heard  from  you  that 
France  probably  intended  to  set  up 
such  a  claim.  He  inquired  upon  what 
grounds,  upon  which  I  gave  him  an 
outline  of  what  they  would  probably 
be,  as  made  known  in  your  letter  of 
the  third  of  August,  as  well  as  of  our 
grounds  of  resistance  to  the  ':lr;in;,, 
drawn  from  the  same  source.  He 
took  down  the  treaty  of  1783,  and 
after  looking  into  it  pronounced  the 
claim,  as  it  struck  him  at  first  blush, 
to  be  altogether  untenable.  Neither 
the  treaty  or  the  declaration,  he  said, 
afforded  any  countenance  to  the  doc- 
trine or  inference  that  Britain  had  lost 
her  concurrent  right  to  fish  on  that 
coast.  The  declaration,  in  particular, 
he  thought  excluded  any  such  infer- 
ence, being  obviously  coupled  with 
the  treaty  of  Utrecht,  as  its  sub- 
stratum, and  only  intended  in  a  spirit 


39 

of  accommodation  to  France.  We 
went  through  the  words  of  it,  and  you 
will  naturally  conclude  that  I  said 
what  I  could  to  strengthen  his  im- 
pressions. 

Having  mentioned  the  subject  to 
Mr.  Robinson  in  this  general  way,  it 
is  not  my  present  intention  to  go  for- 
ward in  it  any  further  with  this  gov- 
ernment, unless  instructed  by  our  own. 
Having  apprised  the  Secretary  of 
State  of  our  correspondence,  I  may 
expect  to  hear  from  him  before  very 
long,  should  he  deem  it  necessary, 
and  in  the  meantime  I  will  not  omit  to 
furnish  you  with  whatever  further 
matter  I  may  be  able  to  command. 

I  will  ask  the  favor  of  you  to  ac- 
knowledge by  a  single  line  the  receipt 
of  this  letter,  which  I  shall  reserve  for 
a  private  hand,  as  soon  as  it  may  get 
to  you;  a  request  that  I  would  not 
make  but  for  the  uncertainties   that 


40 

Srr""'  ^'^  "^^^^^^'-^  of  let- 
ters m  France,  and  that  I  may  forward 

I  remain  dear  sir  with  great 
attachment  &  respect  your 
faithful  and  obt.  svt 
RICHARD  RUSH. 


\ 


i'-'j  s'^Ht 


J  -  .t:-j-u^  i '. 


